Citation Nr: 1823640 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-30 818 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction over the appeal presently rests with the RO in St. Louis, Missouri. FINDING OF FACT Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment for any period on appeal. CONCLUSION OF LAW 1. The criteria for a grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in February 2013. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). TDIU The Veteran seeks a total disability rating based on individual unemployability (TDIU). A Veteran will be entitled to TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2017). To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2."). The Board finds that the claim should be denied. As an initial matter, the Veteran is rated as 90 percent disabled, with a 60 percent rating for diabetic nephropathy, effective December 29, 2010. Therefore, he meets the schedular criteria for consideration of entitlement to TDIU, and the Board must consider his capability of substantially gainful employment. In his initial claim, the Veteran stated that he was employed through January 2012 as an electrician. VA requested information from the Veteran's last reported employer who responded that his last date of employment was August 6, 2012, and that he left that employment for another job. The Veteran contested this statement in his VA Form 9 (Appeal to the Board of Veterans' Appeals) indicating that he worked in January 2012 for several days, and attempted to work again in May of that year for 6 or 7 days, before quitting that position. He contests the statement that he left for other employment. The Veteran was afforded several VA examinations in connection with his claim. An April 2013 audiology examination found that the Veterans' hearing loss will have a negative impact on his ability to understand speech if left untreated. However, with proper amplification, the disability of hearing impairment will not alone render him unemployable. A May 2013 general medical examination included a review of the Veteran's complete medical record and concluded that, although not safe nor comfortable to maintain his current gainful employment as an electrical engineer (a position which requires climbing ladders or working with high voltage electrical lines), he has no service connected disability that would prevent gainful sedentary or supervisory employment. The Veteran was found to be intelligent, social, and able to maintain a small ranch (described as a few cows and horses), gardening and/or helping his son and brother (at least in terms of advisory or supervisory positons) run a tomato farm/business. He was found able to travel as well, so he should be able to maintain gainful employment. In support of his claim the Veteran submitted tax returns from 2012 and 2013 which showed minimal income, generally offset by farming losses. Requests were submitted to the Social Security Administration (SSA) for any medical records held by that agency, but a response was received which indicated no such records were available. After a careful review of the medical and lay evidence of record, the Board has determined that none of the Veteran's service-connected disabilities, either individually or together, preclude him from obtaining or maintaining substantially gainful employment consistent with his education and past occupational experiences. Particularly, despite not being able to engage in his prior occupation as an electrical engineer due to the physical nature of the job, the Veteran has subsequently engaged in other work. Here, the Board notes that he has reported assisting his son and brother in their business. While the Veteran has stated in his VA Form 9 that this was not actual employment, but rather just helping a family member, that he did not take a permanent position or accept payment for that work is of less consequence to the Board's decision than the fact that the Veteran could actually engage in such work. Likewise, the Veteran's tax returns show income offset by farming losses- again, that the work resulted in a loss as opposed to a fiscal gain is of minimal impact in considering the Veteran's employability- what matters is that he engaged in such a line of employment. Finally, the Veteran has been an active participant throughout his appeal, submitting extensive, well thought out statements on his own behalf. This supports the May 2013 examiner's opinion that the Veteran is intelligent, with ample education and other faculties to be capable of engaging in work beyond mere physical labor which may be hindered by his physical disabilities. In conclusion, the Board acknowledges the Veteran's assertions that his service-connected disabilities impair his functioning to some degree. In fact, it is for that very reason that service connection was established and compensable ratings assigned in the first place; however, the evidence of record reflects that the Veteran's disabilities only interfere with physical activities, and do not preclude sedentary employment. As such, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to TDIU is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs